P. v. Cox CA6

Filed 8/10/26 P. v. Cox CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H052932
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2111630)

v.

RALPH SILAS COX,

Defendant and Appellant.

A jury convicted defendant Ralph Silas Cox of two counts of lewd or
lascivious act on a child under age 14 (Pen. Code,1 § 288, subd. (a)). The trial
court suspended imposition of sentence and placed Cox on probation.
On appeal, Cox claims the trial court erred in denying a motion for new
trial based on alleged juror misconduct. Cox also claims his defense counsel
provided ineffective assistance of counsel (IAC) by failing to timely request
juror identifying information.
For the reasons explained below, we affirm the judgment.

1 All further unspecified statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL BACKGROUND
A. Charges
In September 2022, the Santa Clara County District Attorney filed an
information charging Cox with two counts of lewd or lascivious act on a child
under age 14, N. Doe2 (§ 288, subd. (a); counts 1 & 2). The offenses allegedly
occurred about and between August 14, 2017, and August 13, 2019.
The jury heard evidence on the charges in September 2024.
B. Evidence Presented at Trial
Doe was 19 years old at the time of trial; Cox was 50 years old.
1. Prosecution Evidence
During middle school, Doe lived with her mother (M.D.) and Cox, who
was M.D.’s boyfriend. When Doe was around 12 or 13 years old, Cox began
making comments about Doe’s body and “outfit decisions.” One morning
during this period, Cox entered Doe’s bedroom, got into bed with Doe, and
touched her breasts with his hand over her shirt. Cox also touched Doe’s
vaginal area with a circular motion over her clothes for a “couple minutes.”
Some weeks later, Cox again entered Doe’s room and got into bed with
her. Cox touched Doe’s breasts and vaginal area in the same manner he had
previously.
On one occasion around this time, Cox sat on Doe’s bed and massaged
her feet while her mother was in the shower.
After M.D. received a cancer diagnosis (in early 2020) and the COVID-
19 pandemic began, Doe told M.D. about Cox’s abusive behavior. Doe
explained to the jury that she “didn’t really know how things were going to

2 The information identified the minor victim by first initial and the

pseudonym “Doe.” We refer to the minor as Doe and other persons by their
initials to protect their personal privacy interests. (See Cal. Rules of Court,
rule 8.90(b)(4), (10)–(11).)
2
end up or what things would lead up to; so [she] knew that [she] had to get
[her]self out of that situation.” Doe added that she “saw and heard firsthand
the amount of emotional stress that [M.D.] was constantly under” and knew
that the “yelling and fighting” between M.D. and Cox “wasn’t good.”
After Doe reported the abuse to her mother, M.D. told Cox to move out
of their home and contacted child protective services.
In May 2020, San Jose Police Department Detective Nicholas Barry
received a child protective services report and contacted M.D. Barry learned
that M.D. and Doe “were not ready to proceed with the legal process in this
matter.”
A year later (in May 2021), M.D. contacted Detective Barry and
requested that the case be reopened. Barry interviewed M.D. and Doe later
that month.3
2. Defense Evidence
Cox called four witnesses to testify about his good character, including
an ex-wife (with whom he had a child), a stepdaughter, a former partner
(with whom he had two children), and a former partner’s daughter. These
witnesses opined that Cox did not have an inappropriate sexual interest in
minors.
Cox testified on his own behalf. Cox denied that he touched Doe’s
breasts or vagina, lay in bed with Doe, rubbed her feet, sat at the edge of her
bed and stared at her, or spent time alone with Doe in her bedroom. Cox also
denied making comments about Doe’s body or her appearance.

3 In addition to the evidence described ante, the prosecution presented

expert testimony from psychologist Dr. Dawn Blacker on child sexual abuse
accommodation syndrome.
3
Cox explained that his romantic relationship with M.D. began around
2012, and he lived with M.D. and Doe while Doe was in middle school. M.D.
supported Cox financially “[m]ost of the time,” because he did not have
regular work as a flooring contractor. Cox “cheated on” M.D. with more than
one woman. Cox and M.D. “argued a lot,” primarily about Cox’s
unfaithfulness. During their relationship, M.D. “kicked” Cox out of her house
many times, including “permanently” in April 2020, when Doe reported that
Cox had touched her. Thereafter, M.D. and Cox continued their romantic
relationship for several months, and M.D. gave Cox a Valentine’s Day card in
February 2021. During this period, Cox gave M.D. cash “[e]very once in a
while” and sometimes borrowed money from her.
Cox testified that Doe “never liked” him. Cox further stated that he
“just kind of stayed away” from Doe, and they “didn’t really conversate
much.” According to Cox, Doe seemed upset at times when her mother “gave
a lot of attention” to Cox’s children.4
C. Deliberation and Verdicts
The jury began deliberations early in the afternoon of September 24,
2024.5
The next afternoon (September 25), the jury returned guilty verdicts on
counts 1 and 2. When polled by the courtroom clerk, each juror affirmed the
verdicts.

4 In the prosecution’s rebuttal case, Doe testified that she did not feel

jealous when M.D. paid attention to Cox or his children. Doe denied that she
was motivated by jealousy when she told her mother about Cox’s abusive
behavior and later spoke to the police. Doe reaffirmed that she was truthful
during her testimony.
5 Unless otherwise indicated, all dates were in 2024.

4
D. Cox’s New Trial Motion
On December 9, Cox filed a motion for a new trial alleging juror
misconduct that violated his constitutional right to due process (§ 1181, subd.
(3)) (new trial motion or motion). The motion included a declaration from
Juror No. 4 (J.A.).
During jury selection, J.A. had identified himself as a 20-year-old,
Mexican American, male college student. In J.A.’s presence, the prosecutor
peremptorily challenged J.A. Defense counsel objected to the challenge. The
trial court directed J.A. to “resume [his] seat” and immediately conducted a
hearing on the objection (made under Code of Civil Procedure section 231.7)
outside the presence of the prospective jurors. The prosecutor offered two
reasons for the peremptory challenge: (1) J.A. was the only prospective juror
to express “an interest and active desire to serve on the jury” and “he talked
about it being related to . . . the change in career fields that he’s doing
moving away from paleontology and towards criminal psychology,” and
(2) J.A. stated in his juror questionnaire that a prosecutor is “someone who
was trying to put someone away” and “specifically said, ‘I like seeing defense
attorneys work.’ ” The court sustained under Code of Civil Procedure section
231.7 defense counsel’s objection to the prosecutor’s preemptory challenge.
Thereafter, in J.A.’s presence, the court stated that, based on the discussion
it had with counsel for the parties, J.A. “will remain” in his seat.
In his posttrial declaration, J.A. averred: “I voted guilty, but I believe
that Ralph Cox is innocent of the charges alleged, and I believed that Ralph
Cox was innocent even when I voted guilty. [¶] I voted guilty because other
jurors told me that I could not consider the alleged victim’s motive to lie, and
that under CALCRIM [No.] 226, I had to accept the alleged victim as credible
because her truthfulness was not challenged. As I deliberated, I did believe

5
that the alleged victim had a motive to lie and that she was not telling the
truth, but I felt legally obligated to vote guilty because of what the other
jurors told me about CALCRIM [No.] 226.”6 (Italics added.)
J.A. recounted that he had spoken to Cox’s defense counsel outside the
courthouse on the day the jury returned its verdicts and relayed to counsel
his (J.A.’s) belief in Cox’s innocence and the obligation to vote guilty. J.A.

6 The trial court instructed the jurors with CALCRIM No. 226

(CALCRIM 226) as follows: “You alone must judge the credibility or
believability of the witnesses. In deciding whether testimony is true and
accurate, use your common sense and experience. You must judge the
testimony of each witness by the same standards, setting aside any bias or
prejudice you may have. You may believe all, part, or none of any witness’s
testimony. Consider the testimony of each witness and decide how much of it
you believe. [¶] In evaluating a witness’s testimony, you may consider
anything that reasonably tends to prove or disprove the truth or accuracy of
that testimony. Among the factors that you may consider are: [¶] How well
could the witness see, hear, or otherwise perceive the things about which the
witness testified? [¶] How well was the witness able to remember and
describe what happened? [¶] What was the witness’s behavior while
testifying? [¶] Did the witness understand the questions and answer them
directly? [¶] Was the witness’s testimony influenced by a factor such as bias
or prejudice, a personal relationship with someone involved in the case, or a
personal interest in how the case is decided? [¶] What was the witness’s
attitude about the case or about testifying? [¶] Did the witness make a
statement in the past that is consistent or inconsistent with his or her
testimony? [¶] How reasonable is the testimony when you consider all the
other evidence in the case? [¶] Did other evidence prove or disprove any fact
about which the witness testified? [¶] Did the witness admit to being
untruthful? [¶] Has the witness engaged in conduct that reflects on his or
her believability? [¶] Do not automatically reject testimony just because of
inconsistencies or conflicts. Consider whether the differences are important
or not. People sometimes honestly forget things or make mistakes about
what they remember. Also, two people may witness the same event yet see or
hear it differently. [¶] If the evidence establishes that a witness’s character
for truthfulness has not been discussed among the people who know him or
her, you may conclude from the lack of discussion that the witness’s character
for truthfulness is good.”
6
further recounted that he spoke to a defense investigator two days later and
told the investigator that he (J.A.) “felt obligated to vote guilty because of
CALCRIM [No.] 350.”7 About two months later (on November 22), J.A. spoke
again with defense counsel and the defense investigator. J.A. told them that
“even though I believed that Ralph Cox was innocent, a few other jurors, and
specifically, a blond woman who was an engineer, told me that I could not
consider the alleged victim’s motive to lie because there was no evidence of that
motive, so it was just speculation that I had to discount. I did believe that the
alleged victim had a motive to lie, but I was told that I could not consider that
motive under CALCRIM 226, so I felt legally obligated to vote guilty.” (Italics
added.)
J.A. concluded his declaration saying: “I believe that Ralph Cox was
innocent, and I expressed to the other jurors that I believed that Ralph Cox
was innocent. At least a few jurors were on the fence about his guilt. The
only reason I voted guilty was because I was told that I could not consider the
alleged victim’s motive to lie under CALCRIM 226. If I was told that, legally,
I could have considered the alleged victim’s motive to lie, I would have voted
not guilty.”

7 The trial court instructed the jurors with CALCRIM No. 350 as

follows: “You have heard testimony that the defendant is not a sexually
deviant person. [¶] Evidence of the defendant’s character for sexual
propriety towards minors can by itself create a reasonable doubt whether the
defendant committed a lewd and lascivious act on a child. However, evidence
of the defendant’s character for sexual propriety towards minors may be
countered by other evidence of his character for the same trait. You must
decide the meaning and importance of the character evidence. [¶] You may
take that testimony into consideration along with all the other evidence in
deciding whether the People have proved that the defendant is guilty beyond
a reasonable doubt.”
7
In his motion Cox argued that J.A.’s statements regarding the jury’s
discussions of CALCRIM 226 were “admissible to prove juror misconduct as it
does not implicate the reasoning process of [J.A.] or any other juror; rather,
this portion of the [declaration] establishes the making of statements which
themselves constitute misconduct.” Cox further asserted that J.A.’s
declaration “establishes that multiple jurors improperly introduced erroneous
and extraneous law during the deliberation process,” which contradicted
“instructions given by the court, and by introducing these statements of law,
the jurors who made them committed misconduct.” Cox additionally
contended that the presumption of prejudice could not be overcome because
the case turned on Doe’s credibility and the “extraneous law injected into the
deliberations in this case was directly tied to the alleged victim’s motive to lie
and credibility.”
In written opposition to the motion, the district attorney argued that
J.A.’s declaration contained his “subjective mental process during
deliberation and is completely inadmissible.” The district attorney noted that
“[m]any of the statements begin with I believe, or I felt[,] reflecting an
internal thought process.” The district attorney additionally contended that
even if the trial court were to consider J.A.’s declaration, “it still fails to
establish misconduct.”
The district attorney argued that “[d]iscussions of the law, even if
reflecting confusion or disagreement do not amount to misconduct unless
there is ‘discussion or agreement among the jurors evidencing a deliberate
refusal to follow the court’s instructions.’ ” The district attorney further
argued that J.A.’s statement about being told by fellow jurors not to consider
Doe’s “motive to lie because there was no evidence of that motive” does not
amount to misconduct. Rather, “this is a fair understand[ing] of the law and

8
instructions given.” The district attorney summarized his position as follows:
J.A. “was not told to disregard instructions, to consider evidence not admitted
at trial, to consider an outside source of law, or to submit to the authority of
another juror[’]s position or experience, as such no misconduct occurred.”
In his reply, Cox asserted that the statements of other jurors recounted
by J.A. were “verbal commands given to [J.A.]” and “are more akin to overt
acts than to statements which reflect internal thought process, and thus are
admissible under Evidence Code section 1150.” Cox additionally asserted
that the statements established juror misconduct because “[w]hen other
jurors told [J.A.] that he must discount evidence of the alleged victim’s motive
and accept the alleged victim as credible, the jurors injected extraneous law
into the jury-room and directed [J.A.] to disregard CALCRIM 226 and submit
to their own extraneous version of the law.” Regarding prejudice, Cox wrote:
“Notably, the prosecution does not argue the issue of prejudice, and thus
concedes it.” (Italics added.)
E. Hearing on Cox’s New Trial Motion and Sentencing
The trial court held a hearing on Cox’s new trial motion and
sentencing. After counsel for the parties presented oral argument, the trial
court denied the motion. In ruling on the motion, the court noted that the
jurors had been polled after they returned their verdicts. The court stated its
concern that “if one accepts the averments in [J.A.’s] declaration,” J.A.
affirmed the verdicts during polling even though “in his mind, that wasn’t his
true verdict.” The court described J.A.’s declaration as including averments
about “what [J.A.] was told. ‘One juror told me this. The same juror told me
this.’ It doesn’t say ‘he forced me.’ He doesn’t say ‘I was intimidated. They
all ganged up on me. They said things to me that made me feel
uncomfortable. They’re so much older than me. They’re so much more

9
educated than me. I felt intimidated. I felt in over my head.’ ” The court
further explained that J.A.’s declaration did not include “any averments that
show there was anything other than the thoughts, the perceptions, the
discussions of the jurors in that deliberative process.” The court stated that
“[t]here is nothing . . . in the record that would indicate that [J.A.] was
someone who was particularly vulnerable or susceptible to pressures in a
deliberation scenario.”
The trial court found that J.A.’s “declaration should not be admitted
because it really does essentially nullify that which we know about what took
place at the time that they announced their verdict, the polling affirming the
verdict.” The court added: “So the court finds that the declaration or the
affidavit of the juror is inadmissible under [Evidence Code section] 1150
because it does really contain nothing that sheds light that there was any
sort of misconduct in the deliberation of this case.” The court additionally
found that Cox had received a fair trial and there was no showing of a due
process violation.
In sentencing Cox, the trial court suspended imposition of sentence and
placed Cox on probation for three years with conditions.
II. DISCUSSION
A. Denial of New Trial Motion Alleging Juror Misconduct
Cox contends the trial court “erred because the motion presented
admissible, credible evidence that jury misconduct had occurred that raised a
reasonable probability of actual harm.”
1. Legal Principles
In a criminal case, a new trial motion may be granted on the ground
that the jury engaged in “misconduct by which a fair and due consideration of
the case has been prevented.” (§ 1181, subd. (3).)

10
“Juror misconduct occurs when an ‘overt event is a direct violation of
the oaths, duties, and admonitions imposed on actual or prospective jurors,
such as when a juror conceals bias on voir dire, consciously receives outside
information, discusses the case with nonjurors, or shares improper
information with other jurors.’ ” (People v. Alvarez (2025) 18 Cal.5th 387,
434–435.)
“ ‘ “When a party seeks a new trial based upon jury misconduct, a court
must undertake a three-step inquiry. The court must first determine
whether the affidavits supporting the motion are admissible. [Citation.] If
the evidence is admissible, the court must then consider whether the facts
establish misconduct. [Citation.] Finally, assuming misconduct, the court
must determine whether the misconduct was prejudicial. [Citations.] A trial
court has broad discretion in ruling on each of these questions and its rulings
will not be disturbed absent a clear abuse of discretion.” ’ ” (People v. Stayner
(2026) 19 Cal.5th 395, 562 (Stayner); see also People v. Caro (2019) 7 Cal.5th
463, 521 [Appellate courts “only disturb a trial court’s decision on a motion
for new trial if the ruling constitutes ‘a manifest and unmistakable abuse of
. . . discretion.’ ”].)
“ ‘When the motion [for new trial] is based upon juror misconduct, the
reviewing court should accept the trial court’s factual findings and credibility
determinations if they are supported by substantial evidence, but [the
reviewing court] must exercise its independent judgment to determine
whether any misconduct was prejudicial.’ [Citation.] ‘Juror misconduct gives
rise to a presumption of prejudice [citation][, which] the prosecution must
rebut . . . by demonstrating “there is no substantial likelihood that any juror
was improperly influenced to the defendant’s detriment.” ’ ” (Stayner, supra,
19 Cal.5th at p. 562.)

11
Admissibility of juror declarations to attack a verdict’s validity is
governed by Evidence Code section 1150. “Evidence Code section 1150,
subdivision (a) provides that, while a verdict’s validity may be challenged by
evidence of ‘statements made, or conduct, conditions, or events occurring,
either within or without the jury room, of such a character as is likely to have
influenced the verdict improperly,’ evidence may not be admitted ‘to show the
effect of such statement, conduct, condition, or event upon a juror either in
influencing him to assent or dissent from the verdict or concerning the
mental processes by which it was determined.’ ” (People v. Nadey (2024) 16
Cal.5th 102, 170.) Thus, evidence of jurors’ “internal thought processes” is
inadmissible to impeach a verdict. (In re Hamilton (1999) 20 Cal.4th 273,
294; see also People v. Steele (2002) 27 Cal.4th 1230, 1264 (Steele) [“Because,
as a matter of substantive law, the jurors’ mental processes leading to the
verdict are of no jural consequence, evidence of those mental processes is of
no ‘consequence to the determination of the action’ (Evid. Code, § 210) and
hence is irrelevant.”].)
Although juror declarations are admissible to the extent that they
describe overt acts constituting jury misconduct, “ ‘juror declarations are
inadmissible to the extent that they purport to describe the jurors’
understanding of the instructions or how they arrived at their verdict.’ ”
(Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 623.) Moreover,
juror statements that amount to overt acts constituting misconduct “must be
admitted with caution,” because these “[s]tatements have a greater tendency
than nonverbal acts to implicate the reasoning processes of jurors—e.g., what
the juror making the statement meant and what the juror hearing it
understood.” (In re Stankewitz (1985) 40 Cal.3d 391, 398 (Stankewitz).)

12
2. Analysis
Cox claims that the trial court wrongly excluded J.A.’s declaration
under Evidence Code section 1150. Cox further maintains he “presented
evidence that at least two jurors had committed misconduct by introducing
extraneous legal matter into the jury’s deliberations.” Cox asserts that this
juror misconduct prejudiced him and violated his constitutional rights
because it concerned the central issue of Doe’s credibility and at least two
jurors “vouched for the erroneous interpretation of CALCRIM No. 226,
multiplying the interpretation’s coercive power.”
We begin our analysis of Cox’s claims by addressing two additional
assertions stated in Cox’s briefing. First, Cox contends that the trial court
“made no adverse credibility determination regarding [J.A.]” and this court
“should find no implied adverse credibility determination.”
We do not agree. As noted ante (pt. I.E.), the trial court observed that
acceptance of J.A.’s declaration would require the court to conclude that J.A.
falsely affirmed his verdicts during polling. The court’s observation amounts
to an implicit finding of doubt about J.A.’s credibility and is supported by
substantial evidence—namely the discrepancy between J.A.’s affirmation in
court that the announced guilty verdict on each count was his “true and
correct verdict” and his subsequent averments that he “voted guilty” even
though he believed Cox “is innocent of the charges alleged.”
Second, Cox faults the trial court for allegedly misreading J.A.’s
declaration regarding the number of jurors who made statements about
CALCRIM 226’s effect on the jury’s consideration of Doe’s motive to lie. Cox
points to the court’s description of J.A.’s declaration as including averments
that “ ‘[o]ne juror’ ” (rather than “ ‘other jurors’ ”) made the alleged
statements about Doe’s credibility. Cox asserts that the court’s reading of

13
J.A.’s declaration to identify only one offending juror amounts to an abuse of
discretion for “failing to base its decision on the evidence.”
Cox’s contention fails to acknowledge that, at the beginning of the
hearing on Cox’s motion, the trial court noted that it had read the parties’
briefing and described Cox’s motion as follows: “The gist of the request for a
new trial is on the basis of jury misconduct in the form of information that --
from one of the jurors -- that he received information or communications from
fellow jurors -- one or more fellow jurors that led to him concurring in a guilty
verdict despite the fact that he had reservations of that guilt.” (Italics
added.) Moreover, later in the hearing, defense counsel similarly described
J.A.’s declaration, stating that there was no indication from the declaration
that “the juror or jurors who made the directive comments accompan[ied]
those directive comments with any show of authority in terms of who they
are.” (Italics added.) Counsel also quoted to the court J.A.’s averment that “
‘other jurors told’ ” J.A. that he could not consider Doe’s motive to lie and had
to accept her as credible under CALCRIM 226.
Viewed in the totality of the circumstances, we deem the trial court’s
remark that “ ‘[o]ne juror told [J.A.] this’ ” to be an offhand, shorthand
description of J.A.’s averments, not a definitive pronouncement that reveals
the court’s misapprehension of the evidence before it.
Turning to Cox’s principal claims of error, we are not persuaded that
the trial court abused its discretion when it denied Cox’s new trial motion.
We agree with the Attorney General that the court acted within its discretion
in ruling that the entirety of J.A.’s declaration was inadmissible under
Evidence Code section 1150, because it reflected the jurors’ mental processes
during their deliberation.

14
J.A.’s averments about the alleged statements of other jurors during
deliberation are inadmissible because the averments incorporate the
subjective effect that the juror statements had on J.A. in reaching the verdict
and “concern[] the mental processes by which it was determined.” (Evid.
Code, § 1150, subd. (a).) Moreover, even to the extent that J.A.’s averments
reflect the way some jurors spoke about CALCRIM 226 in relation to Doe’s
motive to lie and credibility, J.A.’s averments remain inadmissible.
“ ‘ “[E]vidence of what the juror ‘felt’ or how he understood the trial
court’s instructions is not competent.’ ’ ” (Steele, supra, 27 Cal.4th at p. 1261,
italics added.) Where a juror “affidavit or declaration suggests ‘ “deliberative
error” in the jury’s collective mental process—confusion, misunderstanding,
and misinterpretation of the law,’ particularly regarding ‘the way in which
the jury interpreted and applied the instructions,’ the affidavit or declaration
is inadmissible.” (People v. Sanchez (1998) 62 Cal.App.4th 460, 476, italics
added; see also Eng v. Brown (2018) 21 Cal.App.5th 675, 710 [juror
statements discussing purported confusion about jury instructions are
inadmissible to impeach the verdict]; Mesecher v. County of San Diego (1992)
9 Cal.App.4th 1677, 1684 [evidence about “the way in which the jury
interpreted and applied the instructions” is inadmissible]; People v. Elkins
(1981) 123 Cal.App.3d 632, 636–637 [juror’s misinterpretation of court’s
instructions inadmissible to impeach verdict because it was reflection of
juror’s subjective mental processes].) These cases support the trial court’s
ruling that J.A.’s averments about the statements of other jurors concerning
CALCRIM 226 and its effect on the jury’s credibility determination are
inadmissible under Evidence Code section 1150.
Even assuming arguendo that the trial court could have deemed
admissible the alleged statements of some jurors to J.A. about CALCRIM 226

15
and the need to accept Doe as credible, the court acted within its discretion
when concluding that those statements did not amount to misconduct. In his
declaration J.A. averred variously that other jurors told him that under
CALCRIM 226, he “had to accept the alleged victim as credible because her
truthfulness was not challenged” and he “could not consider the alleged
victim’s motive to lie because there was no evidence of that motive.” (Italics
added.) These averments do not establish that the other jurors introduced
into the deliberation extraneous or erroneous law concerning the assessment
of witness credibility.
There is no direct conflict between CALCRIM 226 and the statements
allegedly made by some jurors about the jury’s evaluation of Doe’s credibility
based on the evidence presented. The alleged juror statements generally
accord with the recommendations in CALCRIM 226 about the use of the
evidence in deciding witness credibility. Those recommendations include
considering the reasonableness of the witness’s “testimony when you consider
all the other evidence in the case” and whether “other evidence prove[d] or
disprove[d] any fact about which the witness testified.” The alleged juror
statements also seemingly relate to the portion of CALCRIM 226 that reads:
“If the evidence establishes that a witness’s character for truthfulness has
not been discussed among the people who know him or her, you may conclude
from the lack of discussion that the witness’s character for truthfulness is
good.”
J.A.’s averments about what the other jurors allegedly said about
CALCRIM 226 reflect those jurors’ interpretation of the instruction and
reveal that they essentially urged J.A. to focus on the trial evidence when
judging Doe’s credibility. That discussion of the trial court’s instructions does
not amount to juror misconduct for introducing extraneous law. (See People

16
v. Marshall (1990) 50 Cal.3d 907, 950; see also People v. Riel (2000) 22
Cal.4th 1153, 1218–1219 [citing Marshall in upholding the denial of new trial
motion based on a juror’s statement that if jury gave the defendant the death
penalty, “ ‘ “the judge will just commute it to life in prison anyway” ’ ”]; cf.
Stankewitz, supra, 40 Cal.3d at pp. 396–400 [a juror who said “that as a
police officer he knew the law” and made repeated incorrect statements
regarding the elements of a charged offense committed misconduct].)
For these reasons we conclude the trial court did not abuse its
discretion in denying Cox’s new trial motion for failure to demonstrate juror
misconduct.
B. Alleged IAC for Failing to Request Juror Identifying Information
Cox contends that his defense counsel provided prejudicially ineffective
assistance by making an untimely request for disclosure of juror identifying
information during the hearing on the new trial motion and failing to request
disclosure of that information earlier.
1. Additional Background
At the hearing on the new trial motion, defense counsel stated that he
was “not proposing a[n] evidentiary hearing at this point.” Counsel explained
that J.A.’s declaration included “statements that were directives given to”
him by other jurors and “if the court wanted more information or if the
People wanted to test those statements, I think that an evidentiary hearing
would be helpful.” Counsel continued: “But I think when we’re just looking
at the issue today of admissibility, it’s clear that the statements proffered are
the types of statements which are considered more akin to an overt act
because . . . it doesn’t reflect on the internal process of the person who made
the statement, which is the unnamed juror. . . . [¶] And, again, I am not
asking the court to consider how that statement would have affected [J.A.] at

17
this point. That’s the prejudice analysis. Step 3 takes care of that on its
own.”
Later, after the trial court noted that defense counsel’s argument
rested on an assumption that another juror had told J.A. that he could not
consider Doe’s motive to lie, counsel stated that “in this context, prejudice is
essentially presumed” and “the People are essentially conceding it, having
not addressed it in their opposition motion.” Counsel added: “So I hear the
court’s point, and I think that if the court’s position at this point is that if the
court isn’t sufficiently satisfied that the statement was made, . . . the
appropriate remedy at this juncture would be to unseal juror information and
for us to have a further evidentiary hearing. [¶] But I think with what the
defense has established [it] certainly gets us over the hurdle of admissible
evidence.”
Defense counsel later reiterated his position regarding the juror
identifying information when responding to the prosecutor’s oral arguments
against the motion. Counsel explained: “If [the prosecutor] wants a chance
to unseal juror records to see if those statements were actually made, if the
court’s not satisfied with the declaration and wants to hear from [J.A.] or
wants to hear from other jurors, I think I understand that at this point, but I
think to deny the motion on admissibility grounds at this point is improper
given the statements that the defense has proffered.”
The trial court did not expressly rule whether juror identifying
information should be disclosed to the parties.
2. Legal Principles
Disclosure of juror identifying information is governed by sections 206
and 237 of the Code of Civil Procedure. Code of Civil Procedure section 206,
subdivision (g) provides, in pertinent part: “Pursuant to [s]ection 237, a

18
defendant or defendant’s counsel may, following the recording of a jury’s
verdict in a criminal proceeding, petition the court for access to personal juror
identifying information within the court’s records necessary for the defendant
to communicate with jurors for the purpose of developing a motion for new
trial or any other lawful purpose. . . . The court shall consider all requests
for personal juror identifying information pursuant to [s]ection 237.”
Code of Civil Procedure section 237, subdivision (b) provides, in
relevant part: “The petition shall be supported by a declaration that includes
facts sufficient to establish good cause for the release of the juror’s personal
identifying information. The court shall set the matter for hearing if the
petition and supporting declaration establish a prima facie showing of good
cause.”
“ ‘Good cause, in the context of a petition for disclosure to support a
motion for a new trial based on juror misconduct, requires “a sufficient
showing to support a reasonable belief that jury misconduct occurred . . . .” ’
[Citation.] The alleged misconduct must be ‘ “of such a character as is likely
to have influenced the verdict improperly.” ’ ” (People v. Hall (2024) 104
Cal.App.5th 1077, 1103; see also People v. Munoz (2019) 31 Cal.App.5th 143,
165; People v. Johnson (2013) 222 Cal.App.4th 486, 493.)
If the trial court finds that the moving party made a prima facie
showing of good cause, and if it finds no compelling interest against
disclosure, the court shall set the matter for hearing. (Code Civ. Proc., § 237,
subd. (b).) The trial jurors are entitled to notice of the hearing and may
“appear . . . to protest the granting of the petition.” (Id., subd. (c).)
“A criminal defendant’s federal and state constitutional rights to
counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) includes the right
to effective legal assistance.” (People v. Mai (2013) 57 Cal.4th 986, 1009

19
(Mai), italics omitted.) “To make out a claim that counsel rendered
constitutionally ineffective assistance, ‘the defendant must first show
counsel’s performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms. Second, the
defendant must show resulting prejudice, i.e., a reasonable probability that,
but for counsel’s deficient performance, the outcome of the proceeding would
have been different.’ ” (People v. Hoyt (2020) 8 Cal.5th 892, 958; see also
Strickland v. Washington (1984) 466 U.S. 668, 687.) We can reject the claim
on either element of the standard. (Strickland, at p. 687; People v.
Kirkpatrick (1994) 7 Cal.4th 988, 1008, disapproved on another ground in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
“It is the defendant’s burden to demonstrate the inadequacy of trial
counsel. We defer to counsel’s reasonable tactical decisions and indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” (People v. Anzalone (2006) 141
Cal.App.4th 380, 394.) “Competent counsel is not required to make all
conceivable motions . . .. Rather, competent counsel should realistically
examine the case, the evidence, and the issues, and pursue those avenues of
defense that, to their best and reasonable professional judgment, seem
appropriate under the circumstances.” (People v. Freeman (1994) 8 Cal.4th
450, 509.)
“It is particularly difficult to prevail on an appellate claim of ineffective
assistance. On direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective assistance are more

20
appropriately resolved in a habeas corpus proceeding.” (Mai, supra, 57
Cal.4th at p. 1009.)
3. Analysis
We are not persuaded that, on this record, there could be no
satisfactory explanation for defense counsel’s failure to file a petition for
disclosure of juror identifying information before the hearing on the new trial
motion. The assertions counsel made in his reply brief (see pt. I.D., ante) and
at the motion hearing regarding the district attorney’s apparent concession of
prejudice betray a decision by counsel to convince the trial court that J.A.’s
declaration was admissible and the averments themselves established
misconduct, which, in turn, would give rise to a presumption of prejudice that
the district attorney had, to that point, failed to rebut.
In other words, defense counsel seemingly decided, strategically, that
because the district attorney did not explicitly dispute in his written
opposition any material fact that Cox had alleged concerning the misconduct,
the trial court could decide—without holding any evidentiary hearing—that
the district attorney had failed to carry his burden to rebut the presumption
of prejudice. (See People v. Hedgecock (1990) 51 Cal.3d 395, 415 [explaining
that “a hearing should be held only when the trial court, in its discretion,
concludes that an evidentiary hearing is necessary to resolve material,
disputed issues of fact”].) Additionally, counsel may have believed that the
other jurors might provide statements contradicting J.A.’s averments about
the deliberation if they were contacted, which would have diminished Cox’s
chances of receiving a favorable ruling on the initial steps of the misconduct
inquiry.

21
Because there could be a satisfactory explanation for counsel’s failure
to request juror identifying information before the hearing, we cannot
conclude that counsel rendered ineffective assistance to Cox.
Furthermore, Cox fails to show any prejudice resulting from defense
counsel’s failure to request juror identifying information. Cox notes that “the
prosecution presented no evidence controverting [J.A.]’s declaration.” Cox,
however, does not point to anything in the record suggesting that if his
counsel had requested and received the juror identifying information, that
information would have led to admissible evidence from other jurors
supporting Cox’s claim of juror misconduct. Given the absence of any such
information in the appellate record, we conclude there is no reasonable
probability that, but for counsel’s alleged deficient performance, the outcome
of Cox’s new trial motion would have been different.
III. DISPOSITION
The judgment is affirmed.

22
______________________________________
Danner, J.

WE CONCUR:

____________________________________
Greenwood, P. J.

____________________________________
Bromberg, J.

H052932
People v. Cox